Thursday, October 30, 2008

The BBC is reporting that Microsoft, Google and Yahoo have signed a global code of conduct promising to offer better protection for online free speech and against official intrusion.

This agreement, called the Global Network Initiative (GNI), is a group of technology companies and non-governmental organizations that have worked together to build a framework for this code of conduct.The current list of members can be found here.

It's interesting to note that the Electronic Frontier Foundation (EFF) - a premier organization fighting to secure online rights and privacy - is a participating member in this initiative. To me, this implies that the GNI may be more than just a public relations stunt by internet companies.

The GNI is still a work in progress, with mostly principles and guidelines having been agree upon. No reporting or enforcement has been established yet.

The GNI provides for these in the future.What's interesting is that the GNI specifically refers to international law for standards in their code of conduct.

Let's run through EIL's big three questions:

WHAT ARE THE ISSUES?

The internet is a worldwide phenomenon.

That is precisely the problem.

Internet users in radically different nations can communicate with each other directly and often without limitation.

Internet companies find value in offering their services to customers around the world.

For example, internet companies like Yahoo and Google have found it profitable to set up subsidiary companies around the world.

The problem occurs when these multinational companies hold users in different nations to disparate standards.

To be fair, it's not Google's fault that China has a different standard of online privacy than Sweden.

It does leave these multinational companies open to charges of abuse or even open to legal liability.

Is there anything these companies can do to protect themselves in the hodge-podge legal world in which they operate?

Yes, by establishing codes of conduct, companies can influence government efforts directed against internet users and these companies create a form of protection for themselves.

WHAT IS THE CONTROLLING INTERNATIONAL LAW?

The GNI specifically references three major declarations of human rights:

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Specifically, the GNI pulls its definition for Freedom of Expression from Article 19 of the UDHR and Article 19 of the ICCPR.

Article 19 of the UDHR states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

This is the very nearly the exact language used in the GNI.

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order (ordre public), or of public health or morals. [emphasis added]

By specifically referencing Article 19 of the ICCPR, members of the GNI have given themselves an escape clause.If it's in a nation's interest, they can declare any type of expression as dangerous to national security, order, morals.

It's a pretty big escape clause.

However, further language in the GNI limits this clause somewhat.

The GNI continues, saying that government restrictions should comply with international human rights law.Also, government action should be necessary and proportionate to the relevant purpose.

In the end notes attached to the GNI Principles, the GNI note that Article 19(3) of the ICCPR is to be read within the context of further interpretations of international human rights bodies.The United Nations Human Rights Committee (UNHRC), the United Nations Special Rapporteur on Freedom of Opinion and Expression, and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles) are all specifically mentioned as authorities that should be referenced for determining the scale and appropriateness of government action.

An example of how these authorities limit governmental actions can be take from the Johannesburg Principles.National Security limitations do not include protecting a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

Source: Johannesburg Principles, Principle 2(b)

Lastly, the GNI takes its definition of Privacy from Article 12 of the UDHR and Article 17 of the ICCPR.

Article 12 of the UDHR states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

This language is echoed in Article 17 of the ICCPR.

The GNI utilizes this language almost word for word to define privacy.

Again, the GNI recognizes that a right to privacy may need to be restricted in narrow circumstances.These restrictions should be consistent with international human rights standards.

The GNI fails to define what authorities can define and interpret the human rights law relating to privacy.

It is clear that the GNI relies heavily on international legal principles and standards to generate it's voluntary code of conduct.

Nations will still be able to limit and control what their populace reads and writes online, but the area which they control may be limited to specific purposes as defined by international human rights law.

WHAT DOES THIS MEAN TO THE READERS?

Will the GNI prevent a political journalist from being arrested in China?

No.

Will the GNI help conceal the identities of feminists in the Middle East?

No.

The GNI will make it harder for governments around the world to oppress their populations, but the GNI will not prevent that oppression from ever occurring.

The GNI makes it less likely that GNI member companies will cooperate with nations on privacy invasions.

Here's how this might work.

For the individual, the GNI does not give a private right of action.In other words, you cannot sue Google just because they violate the GNI.

But if you are suing Google under an existing right of action, you can use the GNI as evidence of commitments Google took upon itself.

These corporate codes of conduct act as evidence of a commitment – a standard the corporations are trying to realize.Courts may find it reasonable for users to rely on such public statements of principles when weighing liability.

Because the members of the GNI have voluntarily assumed these standards, they have assumed potential liability when they violate these standards.

These companies could lose lots of money by not living up to their word.

And the one thing companies hate to do is lose money.

Employees fired for following the GNI may be able to sue for wrongful termination.Customers could use the GNI as evidence of a reasonable expectation of privacy in lawsuits

So when censorship and invasion of privacy issues arise, GNI members will have to calculate the financial costs of breaking their own word.

And that calculation makes them a little more likely to protect the privacy of you and me.

But can they actually own a part of outer space? And can they do whatever they want up there?

Currently, outer space is getting a lot of attention in the international legal community. Issues like jurisdiction, safety & liability, and private vs. military uses all raise legal questions.

Everyday International Law (EIL) plans to look at the law surrounding military functions in outer space. This is often called the weaponization of space.

To do this, we first need to look at the existing law that governs outer space.

In a later entry, we'll look at how those laws relate to the weaponization of space. We'll also look at a possible emerging treaty; the applicability of customary international law, and the latest U.S. domestic policies that apply to outer space.

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 ("Moon Treaty")

These treaties are not the totality of corpus juris spatialis (the law of outer space), but lay out most of the obligations that nations have affirmatively undertaken.

What obligations do these treaties create?

Space is to be used for peaceful purposes.

Outer Space is not subject to national appropriation by claim of sovereignty, even by occupation.

Military bases are not permitted on the moon or other celestial bodies. Use of military personnel in space exploration is permitted.

Nuclear weapons & weapons of mass destruction are not to be deployed in outer space.

Space-faring nations have a duty to rescue stranded astronauts and return other nations' retrieved space objects.

If a nation's space activities causes damage on Earth in another country, that nation is obligated to pay for those damages.

Nations launching objects into Earth orbit must register the object as soon as reasonably possible with a United Nations' registry, stating the orbiting path of the object and its purpose.

There are other duties, like giving reciprocity to representatives from other nations, but these are the main duties derived from this collection of treaties.

Interestingly, most of these treaties are signed by a large number of the international community. The Moon Treaty is not signed by many nations at all. Only 17 nations have signed it. Of the nations that are exploring the moon, only India has signed the Moon Treaty.

Next, EIL will take at look at recent developments in the weaponization of outer space and what international law may govern there.

As I continue to research laws relating to the weaponization of outer space, I would like to thank P. J. Blount, Research Counsel, National Center for Remote Sensing, Air, and Space Law and Instructor of Law, for his advice on space law resources.

Sunday, October 19, 2008

President Bush recently met with French President Nicolas Sarkozy and European Union President Jose Manuel Barroso.

They discussed a potential summit to address the financial crises spreading throughout the world.

As I predicted, the U.S. is already refusing to commit to any significant action on the international level.

First, no date has been set for this summit.

But this could just be because of the looming revamping of the U.S. government. No matter which presidential candidate wins the upcoming election, they will need time to prepare for such a meeting.

Secondly and more telling, Bush is arguing that no action should be taken that hampers the 'the commitment to free enterprise, free markets and free trade.”

I think it can be argued that the markets have been too free lately. Allowing large scale speculation in land, housing, commodities, and oil has led to disastrous consequences that are just now playing out.

The rest of the world is not amused with Bush's lack of leadership on this issue.

France's Sarkozy views U.S. participation in an international scheme as necessary.

"Since the crisis started in New York, maybe we can find the solution in New York," he said. "This is a worldwide crisis, and therefore we must find a worldwide solution."

What does this mean to the readers?

I think the media will focus lots of attention on this proposed summit.

Some type of joint statement of purpose will come out of the summit.

The statement will be generic, with not a lot of details on any real action. No participant will be required to do anything specific, but each will pledge to be more vigilant on policing unregulated behavior that could lead to another financial crises.Readers should expect no real legislative action on any proposals that come from such a summit.

Instead, readers may see executive orders requiring regulatory agencies to consider the statements expressed from the summit.

That's my cynical take on how this summit is shaping up.

Of course, results from the upcoming U.S. presidential election may make it necessary to revisit this prediction.

Thursday, October 9, 2008

I was not planning to spend much time discussing the 2008 U.S. presidential election, but Opinio Juris has a interesting post on Sarah Palin (Republican vice presidential candidate) in her role as Alaskan governor encouraging the ratification of United Nations Convention on the Laws of the Seas (UNCLOS).

China's milk crisis has become a global problem, but what can be done about it?

What are the issues?

Can a nation prevent tainted food products from being imported in this age of free trade and global economies?

Yes.

Countries can prevent tainted food products from entering their borders, but they must do so in accordance with legal guidelines and with the backing of sound scientific data.

What is the controlling international law?

When a problem revolves around trade of a product across borders, you sound immediately look to the World Trade Organization (WTO) agreements. These are a system of treaties that have established trade guidelines that must be followed by the participating member states.

Both the U.S. and China are WTO members.

The U.S. is one of the original signors in 1995, while China acceded to the agreements in 2001.

This means that both the U.S. and China are bound by the WTO agreements, which limits what they can and cannot do in regards to international trade.

Annex A 1 (b) tells us that sanitary or phytosanitary measure are any measure taken:

"to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs..."

It seems to me that preventing industrial chemicals being used as a food additive from poisoning infants and children is exactly in the province of this Agreement.

Annex C allows member states to check and ensure that products meet sanity & phytosanitary measures so long as they do not impose undue delay or unfavorable processes on imported goods.

So, WTO members have permission to check incoming food imports.

Article 5 of the agreement stops member states from banning food imports without justification. Member states must use risk assessment techiniques appropriate to the circumstances and based on international standards or sound scientific data.

In this case, it is well documented that melamine is harmful to humans. It is a chemical used in plastics production that leads to kidney stones and other health problems when consumed.

Monday, October 6, 2008

The region of the Arctic has long been thought to be a route to riches. Now, it is looking as if the Arctic itself is where those fable riches are located. The rapid melting of polar ice is exposing new areas for exploration and exploitation. Countries with borders above the Arctic Circle are rapidly jockeying for who will control these resources.

There issue involved here is international law relating to territorial sovereignty as expressed along coastlines.

What is the governing international law?

Unlike Antartica, the arctic regions of the north have no single treaty governing ownership and use.

Russia's planting of their titanium flag may seem like a blatant terra nullius land grab, but it was not. The accompanying statements to this event made it clear that Russia was attempting to make a claim under the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty.

UNCLOS is a convention that defines specific legal terms, duties, and responsibilities for all nations with ocean coastlines. It is meant to replace the customary law governing the oceanic borders of nations. UNCLOS specifically defines what powers a nation state can exercise in territorial waters, how territorial waters are defined, and created the concept of Exclusive Economic Zones (EEZs) where the coastal nation has sole exploitation rights over all natural resources in that zone.

A nation's EEZ extends 200 nautical miles from the low-water mark of a nation's coast or for the length of the state's continental shelf. The treaty allows states to control whichever distance is greater.

So, it becomes very important to determine if your coast has a continental shelf and how far it extends. A broad shelf gives a state more area and resources to utilize.

This is why the U.S. and Canada are proceeding with high-tech mapping expeditions in the polar regions. They're trying to grab more territory, just like the Russians were trying.

Countries are not allowed to claim that their continental shelf extends beyond the 200 mile limit. Instead, the U.N.'s Commission on the Limits of the Continental Shelf (CLCS) helps determine the actual distance of a country's EEZ by examining claims by member states.

The CLCS was created as by Article 3 of Annex II of UNCLOS.

Surprisingly, the U.S. is a signatory of UNCLOS, but has failed to ratify the treaty in accordance with it's Constitutional process. This means that the U.S. is not a full member to the Convention. Still, U.S. officials have announced that they will treat UNCLOS as customary law. The Bush administration has also urged the U.S. Senate to ratify the treaty – with some reservations.

With every nation possessing an arctic coastline either signing UNCLOS or admitting that it is binding international law, this treaty governs how territorial disputes in the polar sea region will be resolved.

What does this mean for the reader?

The good news is that everyone gets something. Using UNCLOS as the deciding law in this matter means that every nation with an arctic coastline will get some benefits. The British jurisdictional map mentioned above is probably a close approximation of how the upcoming territorial disputes will shake out.

Happily, no one is talking about using military solutions to claim territory in the Arctic Circle.

The Rule of Law works.

The true long term question is, "Does the adherence by these states to international law in this conflict strengthen the case for using international law in the future?"

I think the answer to this question is, "It depends."

There are several factors that contribute to why the interested states are relying on international law in this conflict:

There is already existing international law that binds all the interested parties. UNCLOS governs.

The rewards in this conflict are speculative. No one knows just what resources are available and if they exist in sufficient concentration to be profitably exploited. Why spend money, military resources, and political capital on riches that may not even be there.

On the other hand, the potential resources are too large to ignore. Failure to stake a claim could be an incredibly costly mistake.

It's friggin' cold up there. I mean seriously cold - not even navigable during parts of the year due to the ocean freezing over. The costs to keep men and equipment functioning up there are staggering, even with global warming helping to cut costs. Sometimes, it's just cheaper to talk rather than fight.

So it appears that nations turned to international law in this conflict as part of a low-risk, high-gain bit of gamesmanship. It costs them very little to make a claim under UNCLOS, but not making that claim could cost them a lot in the future.

In a sense, the arctic nations are playing the lottery rather than robbing a bank. Both may get a person a large amount of money, but playing the lottery only means you lost a few dollars if you pick incorrectly. Robbing a bank will get you despised, hunted, and possibly shot.

"Even with (a US bail-out plan), the world will be a tense place for a good while yet, especially if nothing is done to tackle the underlying causes of the credit crunch.

And what the demise of European banks has highlighted is that the solutions will have to cross borders rather than involve the US alone. Financial markets and those who play in them will have to be subjected to more and better regulation.

And regulators from different countries will have to work together in ways they haven't until now. But all this is not going to come together quickly, so the road ahead will be rocky. "

I think this quote reflects a growing realization that cross-border capital trading will have to be regulated on an international level.

The question is, 'Can a real framework for international financial regulation exist if the U.S. refuses to participate?"